In the early 1990’s Minnesota courts started down the road towards requiring all parties in family law proceedings to utilize Alternative Dispute Resolution (ADR). Today it is not uncommon for scheduling orders in all family court matters to require an attempt to reach an amicable settlement.
There are several ADR methods, but they each have the same goal of encouraging the parties to come to an agreement on the issues in the case, instead of having the issues decided by a judge. The most common types of ADR in divorce, custody, and parenting time proceedings are mediation and early neutral evaluations.
ADR methods are encouraged by the courts because they often save time and money for both parties. But there is a strategy for ADR choices and process to make sure they smartly serve each case. Atticus Family Law helps you explore all reasonable paths toward reaching a favorable resolution and works with you to employ the best method for your situation.
Mediation is available prior to going to court and/or after a case has started. While formal court attention will eventually be required, there is no requirement that married couples and parents start a court case before they try to resolve their differences with a mediator.
Mediation is where a professional mediator facilitates a productive, confidential meeting between people with disagreements and disputes. Within a safe environment of balanced power between parties, information is gathered relating to each individual’s goals, which may include children’s needs, income, budgets, taxes, and property valuations. From there the mediator facilitates decision-making using creative, values-laden processes that permit the parties to find common ground for each of the issues identified. Any agreements result in a memo written by the mediator describing all decisions made by the parties.
An Early Neutral Evaluation (ENE) provides parties with an evaluation of the issues by a neutral person. This evaluation occurs within a few weeks of the start of a case.
There are two types of early neutral evaluations: social and financial. Social ENE’s, also called Custody/Parenting Time ENE’s, address non-financial issues though sometimes child support is included. Financial ENE’s address the questions of divorce property divisions, spousal maintenance, child support, and any tax issues. Whereas one family law professional serves as the Financial ENE, a team of two professionals – a male and female – serve as the Social ENE neutrals.
The expectation is that if the family law parties receive a neutral opinion of their case, they will be better able to reach a prompt settlement before the parties dig into unreasonable positions and spend great deals of money on litigation. The neutral approaches the case with the ability to state what they would think a judge would do with the information presented at the ENE.
By using the services of an experienced family law attorney, parties to these cases can get the most out mediation and ENE’s. An attorney assists you in not only being prepared with all of the information and documents, but the attorney proposes and develops a strategy with you so that the facts and issues are logically organized based on priorities, related issues, and needs.
All too often the impatience, anxiety, and misunderstanding of parties who use ADR results in someone agreeing to terms that are contrary to their interests, contrary to what a judge would order, and contrary to the best interests of the children. By working with an attorney before and at the ADR session, parties to a family law case will have the benefit of good advice and someone to help them stay the course.
Another advantage of having legal counsel present is that an ADR session can result in an agreement that is binding upon the parties. While not all of the agreements reached at the end of an ADR session are binding, there are times when a client will want to have both parties lock in the terms. These types of opportunities can best be seized with the help of a good family law attorney.
For any sort of ADR to work, both parties must be prepared to compromise in order to reach an agreement. ADR will fail if it is used just to convince the other party to adopt a party’s positions. On the other hand, a party needs to be careful not to be too generous. A family law attorney will enable a party to appreciate where the line is between prudent compromise and undue generosity. The team at Atticus Family Law has been guiding clients through mediations and evaluations for many years. They listen to each client’s goals and concerns and help design a custom strategy for resolving every issue. Contact our office today to learn more about how we may be able to help you.
Four years ago, Sophia* was referred to us by a former client – feeling vulnerable and fearful, Sophia had a desperate situation. She had a cute blond seven-year-old daughter with her ex-boyfriend Gabriel. Having broken up 2 years prior, Gabriel had filed to establish custody.
After they had broken up, it was ugly. He had violated her privacy by digitally spying on her. Though she felt violated, she chose to be a bigger person and supported a relationship between their daughter and her father. For 8 months Gabriel had informal parenting time with the child twice a week, until such time as Sophia picked up their daughter one day from Gabriel and he was so high he was passed out. The informal parenting time ended that day. It was 9 months later when he filed, she was served, and she came to Atticus Family Law.
You can see why she was distraught. On one hand, Gabriel had violated her trust on two occasions in a deep, hurtful fashion. On the flip side, it was 9 months since that event, she had no proof, and there was no reason to believe that testing him now would help. Under Minnesota law, he had a presumption in his favor to get at least 25% of overnights as parenting time. Sophia had a lot of historical facts that were egregious but she didn’t have any recent, helpful facts.
At the initial hearing, Gabriel agreed to a Social Early Neutral Evaluation. This form of mediation involves a family law practitioner and a child development expert, of differing genders, to serve as neutral evaluators to hear out each parent and make recommendations as to what they think the judge would do if the dispute were to go to trial. After reviewing the roster selections, a strategic selection was made as to who the evaluators would be. What followed was the scheduling of the evaluation and the preparation of Sophia for the mediation.
Sophia completed the AFL mediation strategy; she reviewed our legal tutorials. We reviewed them with her as well as Sophia’s custody questionnaire. She and I told her what to expect. We answered her questions. We worked together to prepare the information she would give to the evaluators. While Sophia was nervous on the date of the evaluation, but she confidently knew she was prepared.
The Social Early Neutral Evaluation went great. Sophia did a fabulous job. Taking each side’s input into account, the evaluation squarely recommended the protections Sophia sought for their daughter’s protection and best interests. Gabriel agreed to the framework of restrictive access: He was going to complete a hair follicle test, do a chemical dependency evaluation with Sophia named as one of the collateral references, and he agreed to participate in reunification therapy with a therapist of our client’s choice where he was not to have any parenting time with the child until it was agreed upon in therapy.
What followed over months was the test, the evaluation, and careful reunification therapy. Sophia reported to me recently that while she continued to be on guard throughout the therapy she trusted the process and knew that as parenting time was recommenced and increased incrementally that it was in her daughter’s best interest to have that time with Gabriel.
Sophia also admitted that had we not been so successful at mediation that a judge may have ordered significant parenting time to start after only a few months without testing or the safety of the therapy.
We believe mediation in its varied forms is a worthwhile method for resolving issues, but it’s essential to know how to do it. Each of our attorneys, prior to joining the firm, sought out mediation training so that it was a strength of their family law careers. The fear that Sophia and others have for legal issues and the prospect of mediation is understandable. We use mediation when it’s ripe to do so, to achieve our client’s goals just as Sophia’s goals were accomplished.
Think positively. We’re here to help, and we’ll be with you every step of the way.
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